Albert Beveridge - The Life of John Marshall, Volume 3 - Conflict and construction, 1800-1815

This threat of secession and armed resistance, already made in the Senate, was to be repeated three times in the debate in the House which was opened for the Federalists by Archibald Henderson of North Carolina, whom Marshall pronounced to be "unquestionably among the ablest lawyers of his day" and "one of the great lawyers of the Nation." 216 216 Henderson in North Carolina Booklet , xvii, 66. "The monstrous and unheard of doctrine … lately advanced, that the judges have not the right of declaring unconstitutional laws void," was, declared Henderson, "the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their Government a Monarchy, Republic, or Democracy." If the Republican theory of the Constitution should prevail, "better at once to bury it with all our hopes." 217 217 Annals , 7th Cong. 1st Sess. 529-30.

Robert Williams of the same State, an extreme but unskillful Republican, now uncovered his party's scheme to oust Federalist judges, which thus far had carefully been concealed: 218 218 See infra , chap. iv. "Agreeably to our Constitution a judge may be impeached," said he, but this punishment would be minimized if judges could declare an act of Congress unconstitutional. "However he may err, he commits no crime; how, then, can he be impeached?" 219 219 Annals , 7th Cong. 1st Sess. 531.

Philip R. Thompson of Virginia, a Republican, was moved to the depths of his being: "Give the Judiciary this check upon the Legislature, allow them the power to declare your laws null and void, … and in vain have the people placed you upon this floor to legislate. 220 220 Annals , 7th Cong. 1st Sess. 552-53. … This is the tree where despotism lies concealed… Nurture it with your treasure, stop not its ramifications, and … your atmosphere will be contaminated with its poisonous effluvia, and your soaring eagle will fall dead at its root." 221 221 Ib. 554.

Thomas T. Davis of Kentucky, deeply stirred by this picture, declared that the Federalists said to the people, you are "incapable" of protecting yourselves; "in the Judiciary alone you find a safe deposit for your liberties." The Kentucky Representative "trembled" at such ideas. "The sooner we put men out of power, who [ sic ] we find determined to act in this manner, the better; by doing so we preserve the power of the Legislature, and save our nation from the ravages of an uncontrolled Judiciary." 222 222 Ib. 558. Thus again was revealed the Republican purpose of dragging from the National Bench all judges who dared assert the right, and to exercise the power to declare an act of Congress unconstitutional. 223 223 See infra , chap. iv.

The contending forces became ever more earnest as the struggle continued. All the cases then known in which courts directly or by inference had held legislative acts invalid were cited; 224 224 See, for example, the speeches of Thomas Morris of New York ( Annals , 7th Cong. 1st Sess. 565-68); Calvin Goddard of Connecticut ( ib. 727-34); John Stanley of North Carolina ( ib. 569-78); Roger Griswold of Connecticut ( ib. 768-69). and all the arguments that ever had been advanced in favor of the principle of the judicial power to annul legislation were made over and over again.

All the reasons for the opinion which John Marshall, exactly one year later, pronounced in Marbury vs. Madison were given during this debate. Indeed, the legislative struggle now in progress and the result of it, created conditions which forced Marshall to execute that judicial coup d'état . It should be repeated that an understanding of Marbury vs. Madison is impossible without a thorough knowledge of the debate in Congress which preceded and largely caused that epochal decision.

The alarm that the repeal was but the beginning of Republican havoc was sounded by every Federalist member. "This measure," said John Stanley of North Carolina, "will be the first link in that chain of measures which will add the name of America to the melancholy catalogue of fallen Republics." 225 225 Annals , 7th Cong. 1st Sess. 579.

William Branch Giles, who for the next five years bore so vital a part in the stirring events of Marshall's life, now took the floor and made one of the ablest addresses of his tempestuous career. 226 226 Anderson, 83. Grigsby says that "Mr. Jefferson pronounced him (Giles) the ablest debater of the age." His speech on the Repeal Act, Grigsby declares to have been "by far his most brilliant display." (Grigsby: Virginia Convention of 1829-30 , 23, 29.) He was Jefferson's lieutenant in the House. 227 227 Anderson, 76-82. When the Federalists tried to postpone the consideration of the bill, 228 228 See supra , 72. Giles admitted that it presented a question "more important than any that ever came before this house." 229 229 This statement, coming from the Virginia radical, reveals the profound concern of the Republicans, for Giles thus declared that the Judiciary debate was of greater consequence than those historic controversies over Assumption, the Whiskey Rebellion, the Bank, Neutrality, the Jay Treaty, the French complication, the army, and other vital subjects. In most of those encounters Giles had taken a leading and sometimes violent part. But there was no excuse for delay, because the press had been full of it for more than a year and the public was thoroughly informed upon it. 230 230 Annals , 7th Cong. 1st Sess. 512.

Giles was a large, robust, "handsome" Virginian, whose lightest word always compelled the attention of the House. He had a very dark complexion, black hair worn long, and intense, "retreating" brown eyes. His dress was "remarkably plain, and in the style of Virginia carelessness." His voice was "clear and nervous," his language "powerfully condensed." 231 231 Story's description of Giles six years later: Story to Fay, Feb. 13, 1808, Story, i, 158-59. Also see Anderson, frontispiece and 238. Giles was thirty-nine years of age. He had been elected to the House in 1790, and from the day he entered Congress had exasperated the Federalists. It is an interesting though trivial incident that Giles bore to Madison a letter of introduction from Marshall. Evidently the circumspect Richmond attorney was not well impressed with Giles, for the letter is cautious in the extreme. (See Anderson, 10; also Annals , 7th Cong. 1st Sess. 581.)

This Republican gladiator came boldly to combat. How had the Federalists contrived to gain their ends? Chiefly by "the breaking out of a tremendous and unprecedented war in Europe," which had worked upon "the feelings and sympathies of the people of the United States" till they had neglected their own affairs. So it was, he said, that the Federalists had been able to load upon the people an expensive army, a powerful navy, intolerable taxes, and the despotic Alien and Sedition Laws. But at last, when, as the result of their maladministration, the Federalists saw their doom approaching, they began to "look out for some department of the government in which they could entrench themselves … and continue to support those favorite principles of irresponsibility which they could never consent to abandon."

For this purpose they had selected the Judiciary Department: "Not only because it was already filled" with rabid Federalists, "but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people than either of the other departments." Thus came the Federalist Judiciary Act of 1801 which the Republicans were about to repeal.

Giles could not resist a sneer at Marshall. Referring to the European war, to which "the feelings and sympathies of the people of the United States were so strongly attracted … that they considered their own internal concerns in a secondary point of view," Giles swiftly portrayed those measures used by the Federalists as a pretext. They had, jeered the sharp-tongued Virginia Republican, "pushed forward the people to the X, Y, Z, of their political alphabet, before they had well learned … the A, B, C, of the principles of the [Federalist] Administration." 232 232 Annals , 7th Cong. 1st Sess. 580-81.